by Anup Singh (Retd), Former Vice Admiral at Flag Officer Commanding-in-Chief of the Eastern Naval Command at Visakhapatnam

Preamble

Geopolitics. In its simplest meaning, geopolitics involves an assessment of the effects of geography on politics, and relations between nations. When one talks of ‘effects of geography’, the influence of a country’s physical location, size, technological progress, demography, topography, climate, and most importantly natural resources, make the difference between the big, and the not-so-big in terms of power and ‘stakes’ in power play. Significantly, geopolitics studies the links between political power and geographic space, and examines strategic prescriptions based on the relative importance of land power and sea power.

Two watershed events have changed the world. One, the fall of the Berlin Wall circa 1989; and two: the tragic fall of the World Trade Towers on 9/11. If one were to look at the difference between conflict and peace in temporal terms, it would be quite apparent that the template of peace changed forever with the fall of the Berlin Wall. It actually feels as if the Balance of Power theorem kept peace in this world during the cold war! But after that event which was immediately followed by the sudden collapse of the Soviet Union, the proverbial dominos of peace have been falling one after the other in various theatres of the globe. In sum, the non-traditional amongst threats and challenges have now replaced traditional conflict. If terrorism, piracy, drug and gun running, were already keeping nations fully engaged in security management, the current paradigm has a new trigger for infusing tension amongst nations – through intimidation and aggressive posturing in some regions.

Southeast Asian Military Modernization. (C) The Asian Forum

The Indo-Pacific Region

Till the middle of the last decade, the Indian and Pacific Oceans were never thought of as a contiguous domain. The clear linkage of economic activity that spans across the trade and energy routes from the Suez and Hormuz on the one end, to the Malacca, Sunda, and Lombok Straits, leading into the South China Sea on the other, and the attendant security threats in the maritime environment, have left no doubt in any one’s mind about the necessity of the region being seen as a continuum. Hence the term: Indo-Pacific. This is the region where all activity economic, as well as military, has been concentrated over the past decade. The rise of China – as an economic giant and a reckonable military power – also influences the treatment of the region as a geographic continuum. China’s growing maritime capabilities, increased interaction in the Indian Ocean, economic interests in both oceans, and territorial/ maritime boundary claims against its neighbours in both oceans, have created a greater sense of insecurity throughout the Indo-Pacific region. Without doubt, this region is now a conspicuously significant strategic space.

The global economy too has witnessed a huge shift from its post-colonial residence in the Western Hemisphere, to the East – where all money has suddenly gravitated over the last decade and a half. That has meant a shift of focus for the world to an area that is being called the Indo-Pacific. It is now the most watched theatre of competition, rivalry, and power play. Few regions of the world have changed as rapidly, after World War II, as the Indo-Pacific region. New powers – based on economic surge – have risen to claim their dominion within what is being seen as the most important geostrategic arena of maximum global attention. The Indian Ocean which was considered a ‘placid lake’, as distinct from the Pacific, till only a couple of years ago, is now being called the crucible of new challenges – both, traditional, and non-traditional. The two oceans are decidedly linked to each other, for all aspects of geography, economy, and indeed strategy! The centrality of the Indo-Pacific region lies in trade, density and concentration of shipping lanes, energy and other mineral resources. One common thread that has united most stakeholder states in the Indo-Pacific is maritime security – which can no longer be defined by threat to seaborne commerce alone. It includes all the elements of traditional and non-traditional challenges, the latter including maritime terrorism, piracy, gun running, drug running, poaching, natural and man-made disasters, and effects of climate change. The overall security scenario of the Indo-Pacific therefore, goes beyond a mere assessment of the balance of power equation or the political equation. Recent developments have shown that the geopolitical canvas of the Indo-Pacific has altered the very nature of interaction between states. The convergence of value inputs in terms of trade, resources, and energy makes this new geographic construct a region of acute vulnerability to peace, and stability. The sea lines of communication (SLOCs) that pass through the region – including those passing through the Red Sea; Persian Gulf; Malacca Strait, and particularly the South China Sea – are some of the most critical trade routes of the world as they carry almost 2/3rd of the world’s energy; half of global containerized cargo; and a third of the world’s bulk cargo[i]. This is one factor of politico-economic dimension that hugely impacts the geopolitical canvas of the region.

The ‘business’ of growing commerce in the Indo-Pacific involves and affects nearly half the globe’s population residing here. Today’s rising economic powers such as China, India, Indonesia, Japan, Korea, and Australia, are principal constituents of this newly defined region. Without doubt, economy is one of the important factors that influence regional politics in an area that has generally been identified by interstate cooperation, healthy (and sometimes unhealthy) competition, rivalry in business and politics, and even some incidence of conflict. However, despite impressive figures of economic growth in the region, one factor of burden that looms large on most of the region is poverty. This factor stems from a lack of employment opportunities in many countries. This is a huge handicap, as it bears the risk of instability, turmoil, and if unchecked, widens the disparity between the rich and poor. The root causes include decades of developmental challenges, followed by recent phenomenon of weak industrial output due to trends of recession/low demand. This scenario calls for regional actors to ‘manage the change’ in terms of the altered dynamics of trade, manufacturing, expanding maritime infrastructure, and of course, security of sea lanes and ports – to minimize risks against progression.

One has to keep in mind that the common thread keeping the Indo-Pacific’s integrity as a geographic region is the sea. The ocean has been responsible for binding the littorals and peoples of different locales, and spurred them on to making economic progress through competition. The Indo-Pacific is decidedly the new locus of all important economic activity. It is also being seen as the new centre of gravity for strategic competition of the world.

The South China Sea

At 3.6 million square kilometers, the South China Sea is one of the largest semi-enclosed seas. It is bounded by ten maritime states, has many groups of islands including the Spratlys and Paracels, and is home to two prominent underwater plateaus – the Macclesfield Bank, and the Scarborough Shoal. Almost half of the mercantile fleet of the world passes through the South China Sea. Six of the ten littoral states in this sea claim parts of it. Some of these are overlapping claims, and are therefore considered conflict-prone disputes. Amidst the very dynamic flurry of activity in this region, the one episode that has challenged the status quo in the geopolitical scenario of the Indo-Pacific in general, and the South China Sea in particular, is the gridlock of territorial and maritime zone claims in the South China Sea. Fuelled by disputes due to the so called “Nine Dash Line”, it has burned bridges amongst neighbours, and promises to keep the sea lines of communication under threat of ‘restriction’ rather than under ‘freedom of navigation’ due to what is being projected as the only claim of ‘ownership’ of a large part of the sea!

China’s Claims

The South China Sea dispute is a case of overlapping and conflicting claims over territory and sovereignty in the Paracel and Spratly island chains, as well as over large areas in the open sea, claimed wholly or in part by China and some others. Alongside the full-fledged islands, there are dozens of uninhabited rocky outcrops, atolls, sandbanks and reefs, such as the Scarborough shoal[ii]. China claims almost the entire water body enclosed within the Nine Dash Line – accounting for 90% of the total area of the South China Sea. China claims its ownership based on 2,000 years of history, and says that the Paracels and Spratlys were regarded as integral parts of the Chinese nation[iii]. China says it issued a map in 1947, detailing these claims (originally with eleven instead of the nine dashes). Taiwan (as the Republic of China) stakes its own claim to the original map. China has ‘forcefully’ occupied certain islands, and has now started reclaiming land around some reefs and rocks as well. And even before arguments on the basis of the Nine Dash Line were over, China has produced a tenth dash! In June 2014, China published a new official map of its territory that went a step ahead of its map-on-passport act two years ago: the new map now introduces a tenth dash! The expansion is akin to a rich man getting greedier by the day, and staking claims even on the “commons” around his estate.

The Beginning

It was in 1974 that the South China Sea first saw the ugly face of annexation by force. That episode involved China sinking a Vietnamese naval vessel, damaging a couple of others, with some 50 casualties on the Vietnamese side. The ‘one way’ battle was designed to outmaneuver Vietnam by use of force – without provocation – to wrest control. Vietnam has always claimed that it exercised sovereignty over the Paracels and the Spratlys, since the 17th Century – following from occupation by the Nguyen dynasty, then by France during its colonization. This was followed by the Republic of Vietnam (South Vietnam) controlling the Western part of the Paracels, while China took control of the Eastern part. In the Spratlys, Itu Aba was occupied by Taiwanese troops, while some other features came under control of South Vietnam. The Phillipines and Malaysia entered some features in the Spratlys – for the first time – in the 70s, and 80s, respectively. Finally, China entered the Spratlys for the first time in 1988, once again through use of force against Vietnamese Transport vessels[iv].

The Guiding Principles

The Law is clear on the award of title for a territory. The principle of “effectiveness”, enunciated in Roman law in the 19th Century, refers to a mode of acquisition of a title founded on the “continuous and peaceful exercise” of state authority[v]. Only by such method of acquisition, can a state lay claim and exercise sovereignty over hitherto unclaimed and abandoned territories, and not by use of force. Therefore, all territories within the two groups of islands that have been occupied by use of force are – on first principles – invalid as to Title. Secondly, the Chinese claim of ownership of these groups for more than 2000 years is not borne out by any historical evidence. It is settled law that the “principle of effectiveness” has been the only basis to recognize sovereignty over hitherto unoccupied territory. Effectiveness refers to a mode of acquisition of a title “founded on the peaceful and continuous display of State authority over the territory”[vi]. Further, a state can become a title holder of ‘terra res nullius’ through effective occupation, and continuous and peaceful exercise of such State authority. It follows then, that forcible occupation cannot be accepted – unless authorized by International Law – for occupation of territory and consequent accord of ‘Title’. Therefore, the two incidents of use of military force by China in 1974, and 1988, do not qualify under the effective occupation principle for ownership.

The Method

Some analysts have recently pointed out that China’s actions are a case of emulation from a chapter of contemporary history – dealing with the Monroe Doctrine. Two centuries ago, US President James Monroe, and his Secretary of State, John Quincy Adams, invoked a new foreign policy doctrine that forbade foreign (intended against European) powers from colonizing, or interfering in Latin America any further. Monroe said this sphere constituted a “core interest” of the United States. However, while the original purpose of the Monroe Doctrine was to prevent any further colonization of Latin America, or conflict with existing colonies (seeking independence) by European powers, its use over the later decades of the 19th century – in annexation, or intervention, is what has made that doctrine somewhat controversial. So, while the world acquiesced to the United States’ sermon in that era (despite some rumblings in Europe), that was “then” – when a powerful “initiator” was unchallengeable, since there were no ‘rules of the road’ in the maritime domain. But enough water has flown since, and with institutions and treaties having civilized the the post-1945 world, “might” cannot be granted (the) “right” in this respect, today. If China is trying to replicate (its own) interpretation of that doctrine, it is obviously misinterpreting the real purpose of the original doctrine. Secondly, in this day and age – of codified laws – no nation can arrogate to itself, a chunk of ocean space, claiming it as its own. The guiding principle in this respect is that propounded by UNCLOS III. It clearly specifies maritime zones entitled to a maritime state; and calls the sea area beyond the Exclusive Economic Zone as the “High Seas” – which in effect is the common heritage of mankind. How then, can lines be drawn over the ocean, claiming open areas or areas conflicting with other states’ Exclusive Economic Zones (EEZs), as one’s own?

The sea is the most important of our ‘commons’. It enables the transportation of goods and people, and is the primary enabler for driving the global economy. That is why the phrase “freedom of navigation” is invoked so frequently, by all nations – rich and poor – to secure the path to economic progression. If one were to just look at the sea lanes of the Indo-Pacific, one would realize that almost all commerce destined to or from the Western, or North-Eastern Pacific, converges on the Malacca Strait, and 95% of this traffic passes through the South China Sea. It has no alternative. The traffic coming or going in to the Suez Canal, coupled with the energy and other cargo from or to the Persian Gulf, passes through the Malacca Strait. This traffic is carried by almost 60,000 large merchant ships annually. In monetary terms, the amount of trade that passes through the South China Sea annually grosses close to 5.3 Trillion US Dollars[vii]. Over one fourth of this belongs to the United States. A chunk of the balance is shared between China, and Japan. Even India uses these sea lanes for passage of 55% of its trade – amounting to 400 Billion US Dollars. In such a scenario, it would be evident, that any threat, or intimidation on ‘jurisdiction’ of common space, is bound to raise the cost of peace in multiple ways, in the region. First amongst the victims is the expenditure on Defence. As a mirror image of the situation during the cold war, as well as the one prevailing after the first Gulf War, most countries in the region have started building their defences in all three dimensions. This is a huge burden in economic terms, as well as on developmental resources within the affected countries in the region. The second victim is an alteration in the alliance system of the world. If the US and Japan had a security treaty signed in 1951, both countries are now revisiting its contents – to reinforce Japan’s interests, and integrity. The issue of “collective security” is on the table, unlike Japanese views just a decade ago. And in quick time, Japanese Prime Minister Shinzo Abe has ensured ‘reinterpretation’ of Article 9 through a Cabinet decision – bypassing any strings attached to Japan’s Parliament, or the need of a referendum[viii]. Japan’s Self Defence Forces will no longer be tethered to restrictive provisions of the post war constitution. That nation will be able to take action against other countries that attack Japan’s sovereignty, or interests. And all this is not just because of the Senkaku/Diaoyu dispute, it has also stemmed from the threat to freedom of navigation in the South China Sea, the threat to curb freedom of air passage through overlapping air defence identification zones (ADIZ), and deliberate intrusion into Japanese waters by PLA(N) submarines. Actions to rewrite security pacts or military assistance are also being contemplated by other stake holders in the South China Sea, like the Phillipines, Malaysia, and Vietnam.

Probable Reasons

One of the primary reasons for China’s assertiveness (and eagerness) to lay claims to such a large portion of the South China Sea through the Nine Dash Line is the attractive riches within the South China Sea. Amongst all the mineral resources, oil and gas are thought to be the most lucrative – because of their assessed quantity. Three years ago, the China National Offshore Oil Corporation (CNOOC), published data claiming almost 125 Billion Barrels of oil, and 500 trillion cubic feet of gas as probable reserves in the South China Sea. Even if these estimates are inflated, and not truly “probable”, the US’ Energy Information Agency (EIA) has estimated that this water body contains approximately 11 Billion Barrels of oil, and 190 Trillion cubic feet of natural gas in undiscovered reserves[ix]. These numbers represent both proved and probable reserves. Due to prevailing disputes and under-exploration in contested areas, however, it has been difficult to determine the actual amount of reserves in the entire sea. EIA’s estimates can therefore be easily considered ‘conservative’ on possibilities. The untapped energy in this sea is what is keenly eyed by China, whose consumption-demand growth curve is becoming steeper by the day. The second reason is the fish/sea food resources in the South China Sea. The impressive harvest (catch figure) of 8 Million tons per annum which account for 10% of the world catch[x], itself reveals a conspicuous reason behind China’s craving for including most of this sea within ‘dashes’. Amongst all littorals of the South China Sea, sea food accounts for over 25% of the essential protein intake. In China’s case, it is ‘volumes’ (due to population density), instead of just percentages, that the country worries about.

Apart from these two ingredients of material necessity, it is also apparent that China views the entire region of the South China Sea as a lucrative domain from the point of view of strategic heft, and therefore wishes to leave no stone unturned in claiming the sea itself (no matter how ludicrous the claim over “common” waters).

Alfred Thayer Mahan – the great naval strategist, and author – emphasized that national greatness could come only to nations that have a connection with the sea, and correctly predicted that sea powers were absorbed in the commercial use of the sea in peace time, and control of the seas in war. That theory rings in a feeling of its application in reverse – when one looks at the South China Sea’s Nine Dash Line. One wonders if old philosophies are being applied – only to thrust down “greatness” through proclamation of ownership of a large chunk of the “free seas”! And as Hans Morgenthau had remarked in his seminal work, Politics Among Nations, “the realist believes that Politics is governed by objective laws that have their roots in human nature.”[xi] After all, it has been a proven fact that nations behave somewhat like human beings when it comes to lust, and international relations.

And What Does International Law Say?

International Law or the Law of nations is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their intercourse, with each other. As a set of rules, International Law has existed (at least) since the Middle Ages. And it owes its existence, as a systematized body of rules to the Dutch Jurist and statesman Hugo Grotius, whose work “De Jure Belli ac paci libri III” in 1625 became the foundation of all development on International Law[xii].

International Maritime Law – in particular that branch which deals with the Law of the Sea – is a much more recent phenomenon, and was comprehensively codified only in the later part of the last century, through the Law of the Sea Treaty (UNCLOS III). By happy coincidence, though, much credit for its founding principle on the “Free Seas” – goes once again to the same author, Hugo Grotius!

The Law of the Sea is very clear on jurisdiction of sea space. Since UNCOS III, the entitlement of maritime zones has been very clearly defined. Other than a Territorial Sea, a Contiguous Zone, and an Exclusive Economic Zone (EEZ), the law does not provide for any ocean space as an entitlement to a coastal state. This goes without exception, and forbids any area of the high seas to be arrogated to any country. One of the guiding principles of International Law has been that territory has meaning and ownership only on land. Unlike land, the ocean is not “territorial”, and therefore cannot be claimed as one’s own possession.

The other aspect of law (post UNCLOS III) is, that no matter how old one’s claims over ocean space on the map, legitimate jurisdictions entitled through maritime zones of other states cannot be overlapped by one’s own. Acts of unilateral carving of zones over others’ zones, would be considered illegal, and without regard to civilized behavior. So, lines drawn over the sea have no basis in law, and unilateral usurping of others’ maritime zones must not be accepted by the international community. Therefore, the “Nine (or Ten!) Dash Line” has no legitimacy and must not be allowed to represent ownership of water, or jurisdiction by a state.

Entitlement of Sovereignty

Lassa Openheimer, the teacher of modern International Law, once said about sovereignty: “There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.” China seems to be taking undue advantage of that quote. It forgets that sovereignty stems from territorial right that must be acquired through legitimate ownership, and not forceful acquisition.

A few facts of applicable international conventions need reiterating here. First, it must be remembered that maritime jurisdiction can only derive from land features, and not by drawing lines over sea areas. Secondly, rocks that cannot sustain human life or economic activity of their own do not enjoy the privilege of an EEZ, or a Continental Shelf.

In the case of the Paracels or the Spratlys, even if China had laid claim to just the larger of the islands (which permit an EEZ in accordance with Article 121 of UNCLOS), it still cannot unilaterally carry out exploration or exploitation activity. This is because it is an accepted practice for maritime areas in dispute, to be kept untouched till resolution through agreement or arbitration. The whole idea is to avoid tension, disharmony, and use of force. China’s actions in unilaterally moving a deep sea oil rig to assert its claims on the Paracels, was a bad example of becoming a ‘law unto itself’. The world knows that China had evicted a Vietnamese contingent from the Paracels, by use of force in 1974. The Vietnamese have claimed these islands since the 17th Century. Vietnam did not withdraw its claims after the 1974 incident. Therefore, the status of these islands continues to be “in dispute”. Moreover, there are other countries that have laid claims to the Paracels. This situation only complicates the ownership tangle, and was bound to provoke protests the way they happened in Vietnam, as well as the stand-off at sea. China had, however miscalculated the initial move, thinking that Vietnam will at best acquiesce to the changed situation; and in the worst case post only diplomatic protests. It had perhaps forgotten that nations react as per their ‘personalities’ which are analogical to human personalities. Over the last decade, China has been over-confident in its posturing. It feels that the world fears its economic prowess and military might, and therefore it can do what (and how) it wants to act! But in less than five weeks it had to retract the rig under the garb of impending bad weather – through upcoming typhoons. This was seen by the world as a face saving mechanism. Everyone knows that the region gets affected by typhoons between May and December, and the peak season is July and August!

In the matter of international relations, it takes a lot to make and keep good relations; but requires only a small, silly move to damage trust and friendship. Relations between Vietnam and China were generally good over the year gone by. But China’s announcement, and subsequent deployment of the “HYSY 981” oil rig approximately 20 miles South of Triton Island in the Paracels in May this year, reignited old tensions, and has made way for an uneasy calm. This altered state of geopolitics has furthered tension and worry amongst other claimants as well.

Everyone understands that China is acting in this manner – only on the basis of over confidence stemming from its economic and military might. In other words, the balance of power has lost equilibrium in a region that claims to host half of global shipping, a majority of industrial raw materials and energy inputs, and many of the promising economies. Acts of acquisition (of rights) must follow legitimate ownership. Otherwise, disputes give rise to disharmony, protest, and unseemly public spat. These become recipe for spoilt relations, changing the fabric of peaceful living.

Conclusion

In the rhetoric of International Politics, attempts to discipline the mighty amongst “sea lawyers” are sometimes dictated by realpolitik when nations that project power on the back of their successful economies and powerful militaries tend to call the shots. Is it really true that “might is right”? Well, these are perceptional issues. The actor which intimidates others, based on its country/population size, and economic/military prowess, assumes that all others will acquiesce to, and accept the boot.

The geopolitical landscape of the South China Sea has for sure changed – for the worse – over the last five years. If China continues to be assertive on its claims, and aggressive in its posture, tensions amongst its neighbours will lead to further disharmony, fear, and frustration. Fear is already rife that China is on its way to becoming a revisionist power. That is why it has embarked upon a campaign to modernize and expand its force levels. Signs of a fresh arms race are becoming conspicuous. It will also lead to more nations seeking legal recourse. It will lead to a reorientation of alliances, and a greater urge for ‘unhealthy’ competition at sea. In sum, the balance of power has been disturbed. To invite equilibrium, all other affected states are bound to be happy with the induction of US forces – aligned with the rebalancing to the East.

In such a scenario, the best concurrent course of action for all actors would be to seek redressal through the International Court of Justice, or the Permanent Court of Arbitration, since all avenues of multi-lateral resolution within claimants have been unsuccessful. There is also need for the international community to raise their voice against threats to freedom of the seas, and to the world economy.